Executive Summary: Claims by home care workers for unpaid overtime have risen steadily since the U.S. Department of Labor, in 2015, eliminated the federal overtime exemptions that allowed agency employers essentially to pay no overtime wage premiums. This has greatly affected agency employers In New York, who are increasingly seeing class action suits being filed against them. It has also affected individuals, families and households in New York who hire home care workers directly, especially when the home care worker is an agency-employer worker who is continued for extra hours in a workweek. Since 2010, the New York Domestic Workers Bill of Rights has required “direct-hire” employers of home care workers to pay overtime at time and one half the worker’s regular rate. When an agency worker is continued for extra hours by an individual, family or household, both can be held liable for unpaid overtime on all hours worked over 40 in a workweek, regardless of who scheduled the hours. Beyond the agency and individual, family, or household, others who have the power, whether or not exercised, to hire, employ, or pay the worker, such as a child or relative who takes care of a client’s affairs or an attorney acting under a power of attorney or as a legal guardian, conservator, or trustee, are also at risk of being held liable. Continue reading
July 22, 2016
8:45 AM – 10:25 AM
The Logan Hotel
1 Logan Square
Philadelphia, PA 19103
About the Program
FordHarrison Partner Stephen E. Zweig, will be a panelist on “Hidden Traps and Pitfalls in Employing a Home Care Worker: Advising Your Client on Doing It the Right Way,” during he NYSBA Elder Law and Special Needs Section Summer Meeting on July 22.
The program will cover: A review of the current status of Federal, NYS, and NYC employment laws, including a review of Internal Revenue Code, Fair Labor Standards Act, NYS Domestic Workers Bill of Rights and NYC Earned Sick Time Act. Managing the risks with knowledge and know-how; constructing employment contracts that protect you; penalties and lawsuits when you skip, skimp, and get stuck.
Please click here for a schedule of events for July 22: NYSBA – Elder Law and Special Needs Section Summer Meeting (July 21-23 2016)
For more information and to register, click here: http://www.nysba.org/store/events/registration.aspx?event=ELDSU16
Executive Summary. Health benefits come in many different forms, each of which can be a creditable expense under the Wage Parity Act (“Act” or “WPA”). Some forms require detailed plans and government filing each year, and must be funded with premiums paid for on a regular basis by a home care agency. Others cap the amount an agency may contribute and only pay or reimburse health expenses as they occur. Each form of health benefit has its own characteristics, advantages and disadvantages, and tax consequences, both to the agency and the worker. Beyond the WPA, to be exempt from penalties under the Affordable Care Act (“ACA”), the health benefit provided must also (i) constitute “minimum essential coverage” under the ACA; (ii) be “affordable” as defined in the ACA; and (iii) provide “minimum value” coverage (meaning that it covers at least 60% of expenses, determined on an actuarial basis).
Please click here for the full article: Home Care Professionals Series – Part 3
Executive Summary. Under the New York Wage Parity Act (“Act” or “WPA”), the term “supplemental wages” covers a wide range of benefits. Generally speaking, any non-wage remuneration that primarily benefits the employee rather than the home care agency may be considered. However, this standard is less than clear and in any event, deciding which benefits to provide workers depends on several factors. For example, some benefits are tax-advantaged both to the agency and the worker; other benefits are not. Some benefits require formal plans under the Internal Revenue Code; other benefits do not. They can be set up as payroll practices without a formal plan. And, some benefits will provide dollar-for-dollar credit against the Act’s $4.09(NYC)/$3.22(LI, Westchester) additional and supplemental wage package (the “WPA Package”); other benefits will not. These other benefits must be calculated using an “annualization method” from prevailing wage law, which reduces the creditable amount for WPA purposes.
Please click here for the full article: Home Care Professionals Series – Part 2
Executive Summary: In Lai Chan et al. v. Chinese-American Planning Council Home Attendant Program, Inc., decided February 3, 2016, the Southern District of New York (covering New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan counties) deferred to arbitration the unpaid wage and overtime claims of Sleep-in workers covered by a union agreement, even though the agreement to arbitrate was signed after the lawsuit alleging these claims against the home care agency was commenced. An earlier decision in this same case from the New York County Supreme Court had denied the agency’s motion to dismiss the complaint, and volunteered that under New York Labor Law, Sleep-in workers must receive wages for 24 hours of work. This question will now be decided in arbitration, not in a court action.
What Reason Did the Federal Court Give?
The question presented was whether unpaid wage and overtime claims of Sleep-in workers should be deferred to arbitration under a union collective bargaining agreement even though the agreement with the arbitration provision was signed after the claims were brought in court.
The plaintiffs claimed that the agreement to arbitrate, which was embodied in a 2015 Memorandum of Agreement between the agency and 1199 SEIU, could not apply retroactively to their claims. The court rejected this argument, stating that under controlling case law, unless the parties said otherwise in the agreement to arbitrate, “an arbitration provision may cover claims that accrued prior to the execution of the agreement to arbitrate.” Moreover, the court added that any question on the scope of the arbitrable issues was for the arbitrator to decide, not the court. Were it not for this court’s decision, the agency would have had to defend the workers’ claims as a class action in court.
Points to Consider:
- To have a court defer wage and hour (or other) claims, whether brought singly or as a class, to arbitration, you must have your home care workers sign bona fide arbitration agreements. These agreements should be written in a manner to be understood by home care workers, provide sufficient protection to allow workers to bring their claims in arbitration, and be entered into voluntarily by workers with safeguards against any claim of fraud or duress.
- Implementation of arbitration agreements in non-union settings and procedures to obtain worker signatures must be consistent, uniform, and designed to obtain informed consent, whether the agreement is requested from a new employee as a condition to hire or a current employee as a condition of continued employment.
What Questions Does This Decision Raise?
- How do you construct an enforceable arbitration agreement that meets all legal requirements?
- What is the “best practice” to be used in asking home care workers to sign arbitration agreements?
- Where an employer knows a class action lawsuit was filed against it, must it advise all workers, including new hires who are asked to sign arbitration agreements, of the lawsuit?
- Will individual arbitration agreements with non-union workers, if implemented properly, apply retroactively to class actions the same as union agreements to arbitrate?
- How would an agreement to arbitrate with a union affect an agency’s former workers from bringing an action in court, either as a class or singly?
- What time limits for bringing wage and hour claims will apply to claims brought in arbitration?
FordHarrison’s Home Care Law Group is composed of partners and associates who are immersed in the home care industry and dedicated to solving its problems. The Group can provide you with an arbitration agreement and written implementation procedures. If you have any questions about this Legal Alert, please call the Group Head, Stephen Zweig, at 212-453-5906 or email him at firstname.lastname@example.org.
Executive Summary. As most home care agencies know, the United States Department of Labor (“USDOL”) eliminated the companionship exemption for home care agency workers on October 13, 2015 in its Final Rule on the Application of the FLSA to Domestic Service Workers (“Final Rule”). What they may not have considered, however, is that following the Final Rule, the NYS Domestic Workers Bill of Rights, which originally only applied to home care workers directly employed by individual households, now also applies to agency employed home care workers. For NYC agencies, in particular, coming into compliance with Domestic Workers Bill of Rights requires changes to the benefits they provide to their home care workers.
Paid Leave Requirements
Until October 13, 2015, when the USDOL’s Final Rule went into effect, NYC home care agencies’ paid leave policies were only required to comply with the paid sick day requirements under Earned Sick Time Act (ESTA) (effective April 1, 2014, except for unionized agencies, which were exempted until their collective bargaining agreements expired). Now, NYC home care agencies have to comply with both ESTA and the NYS Domestic Workers Bill of Rights (“DWBR”).
DWBR requires that home care workers of eligible home care agencies be given 3 paid “days of rest” if they have been employed with the agency for at least one year and averaged 30 or more hours of work per week. Part-time workers receive fewer days, depending on their average hours worked.
ESTA separately requires that home care workers of eligible home care agencies be provided up to 40 hours of paid sick leave annually. Fortunately, ESTA has special provisions for workers covered by DWBR that effectively allow agencies to credit the paid time given under DWBR toward ESTA’s 40 hour requirement: under ESTA, home care agencies are only required to provide 2 days of sick leave to full-time home care workers (and, consistent with DWBR provisions, less time for part-time workers).
In sum, a NYC home care agency must offer its home care workers at least 5 days of paid time off (3 days of rest under DWBR and 2 sick days under ESTA) if they (i) are employed for at least one year; (ii) worked 30 or more hours per week, on average, during the previous year; and (iii) work more than 80 hours per calendar year in NYC.
Accrual and Use Requirements of Paid Leave
DWBR, unfortunately, is silent on accrual and use limitations home care agencies may impose. The New York State Department of Labor (“NYSDOL”) has issued FAQs advising agencies that paid days of rest are due to the worker at the beginning of the calendar year. For home care workers who have not yet been employed for a full year by the first day of the calendar year, the agency must transition the employee’s benefits by providing a pro rata share of days of rest on the one-year anniversary of employment and then providing the full allotment on the first day of the next calendar year. According to these FAQs, agencies cannot require that workers use days of rest in periods of less than one day, and any unused earned days of rest must be paid at the end of each year and at separation of employment. The NYSDOL FAQs also indicate that a “day” is to be paid at the worker’s regular rate of pay for the average number of hours in his or her normal workday.
ESTA, apparently trying to harmonize its requirements with those of DWBR, requires that additional sick time under ESTA be “calculated” in the same manner as days of rest under DWBR, but does not answer whether many of its other nuanced requirements will give way to the provisions under DWBR.
Weekly Day of Rest
DWBR also entitles home care workers to a 24-hour (consecutive) period “of rest” each week, which it recommends be coordinated with the worker’s traditional day for religious observance. If the home care worker waives this entitlement and accepts work on that day, he or she must be paid at the worker’s overtime rate for all hours worked on this day, whether or not the worker’s total hours for the week exceed 40.
What questions does the new application of DWBR raise for NYC home care agencies?
- How many hours constitutes a “day” if your home care workers work shifts of varying lengths, including 24-hour shifts?
- Do home care agencies have to allow their workers to take sick time in 4-hour increments, when that is not required by DWBR?
- May a home care agency implement different notice or scheduling requirements for the use of days of rest under DWBR and sick days under ESTA?
- If a home care agency’s collective bargaining agreement has not yet expired, and therefore ESTA does not apply, how should the agency plan to implement current DWBR and future ESTA requirements?
- If a home care agency had not yet provided any paid days of rest or sick days to its home care workers for 2015, how much time is the agency required to provide retroactively to its workers for 2015?
- May a home care agency choose to rollover workers’ sick days rather than pay out at the end of the year, as allowed under ESTA, but not allowed for days of rest under the DWBR?
- If a home care agency is providing extra paid time off in addition to DWBR time, what are “best practices” and how should they be written in a paid time off provision in an employee handbook?
The Bottom Line
ESTA and DWBR combine to create a statutory minimum for paid time off available to home care workers. However, the interplay between the two laws is not yet well-defined and agencies should be careful to implement a paid time off policy that complies with the different requirements of both laws.
FordHarrison advises and counsels home care agencies on all labor, employment and benefit issues. If you have any questions regarding this Legal Alert or would like our advice about particular facts and circumstances at your home care agency, please contact the authors, Stephen Zweig, Roshni Chaudhari, or Andrea Orr (paralegal), members of the firm’s Home Care Industry Group in its New York City office at email@example.com, firstname.lastname@example.org, email@example.com, or (212) 453-5900, or the FordHarrison attorney with whom you usually work.
Executive Summary: On November 2, 2015, the NYS Department of Health (“DOH”) issued important notices affecting the wage and overtime obligations of New York City and Nassau, Suffolk, and Westchester County home care agencies. In addition to setting Total Compensation under the Wage Parity Act for March 1, 2016 – February 28, 2017, the DOH reversed its existing position that overtime pay does not reduce the additional and supplemental wage package due on each episode of care hour worked under the Wage Parity Act. This reversal of position has major ramifications for the home care industry in downstate New York.
What was the DOH’s position on overtime? Until issuance of Dear Administrator Letters (“DALs”) titled “Official Notice of Home Care Worker Wage Parity Minimum Rate of Total Compensation,” on November 2, 2015, the DOH had said that, “(o)vertime was not included in the Total Compensation rate of $14.09″ under the Wage Parity Act.” (FAQ No. 7, Home Care Worker Wage Parity FAQs May 2014). Under that interpretation, an agency servicing a WPA covered case in New York City was obligated to pay overtime wages for all hours over 40 in a workweek PLUS an additional wage and benefit package of $4.09 (the “$4.09 Package”). On and after the effective date of the U.S. Department of Labor’s “Final Rule,” October 13, 2015, this meant that an overtime episode-of-care hour under the WPA had a labor cost of $15 in wages and $4.09 Package, for a total cost of $19.09.
What is the DOH’s new position on overtime? Each of the Notices issued by the DOH on November 2, 2015, one for New York City and one for Nassau, Suffolk, and Westchester County home care agencies, expressly state that “FAQ number 7 is superseded by this notice.” The Notices state further:
The Overtime premium pay (1/2 times the workers “regular rate of pay”) that employers are required to pay for overtime hours under state and federal minimum wage laws may be used to satisfy the Total Compensation required under the wage parity law. (emphasis added)
This means, says the DOH, that “if the Total compensation rate is $14.09, then the requirement to pay or prove $14.09 is fully satisfied by payment of $15, for that same hour of overtime.” No longer must an agency servicing a WPA case in New York City pay the $4.09 Package on top of $15.00 for an overtime hour.
What questions does this raise for home care agencies?
- If the actual cost to an agency for a WPA covered overtime hour as compared to a non-overtime hour has effectively been reduced to $15 per hour, instead of $19.09 per hour, will this reduction in the overtime premium to $.91 be given more weight in deciding whether to provide a worker with overtime hours in order to retain that worker and worker’s client and greater priority to “continuity of care” concerns?
- If the DOH’s “Notice Regarding Overtime Pay under Wage Parity,” is, as written, “provided to clarify the extent to which overtime can be used to satisfy the Total Compensation requirements for a given hour of overtime” is this clarification effective retroactively?
- If a home care agency has already paid WPA covered overtime hours at $19.09 per hour, is there any recourse or future reduction in WPA $4.09 Package obligations available to that agency?
If you have any questions regarding this Alert or would like our advice of your home care agency’s particular facts and circumstances, please contact our Home Care Group members, Stephen Zweig, Philip Davidoff or Eric Su in FordHarrison’s New York City office at (212) 453-5900, or the FordHarrison attorney with whom you usually work.
Executive Summary. Last week, a Manhattan Supreme Court Justice denied a motion to dismiss a class action lawsuit against Chinese–American Planning Council Home Attendant Program, Inc., brought for unpaid wages, overtime, and failing to pay workers properly under the Wage Parity Act, among other alleged violations. That alone is not newsworthy. What is newsworthy is the court’s statement that “(a)rguably, 12 NYCRR 142-3.1 (b) (a NYS Department of Labor Wage Order) indicates that an employee who works a 24-hour shift is entitled to 24 hours pay ….” Decisions from justices in both the Manhattan and Brooklyn Supreme Courts have now reached this same conclusion, which is very troublesome for agencies continuing to service these cases.
The Court’s Reasoning Why 24 Hours Wages Are Due
The court said that the Wage Order differentiates between 24-hour shift residential employees (who have no other home other than the client’s) and non-residential employees (who have their own home, in addition to the client’s), allowing an agency to deduct sleep-time and duty free time only for residential employees. Quoting from the Wage Order, the court found significant the omission of non-residential employees from the following exception:
(A) residential employee – one who lives on the premises of the employer – shall not be deemed to be permitted to work or required to be available to work: (1) during his or her normal sleeping hours solely because such employee is required to be on call during such hours; or (2) at any other time when he or she is free to leave the place of employment.
The court added that no deference was due to a NYS DOL 2010 Opinion Letter which said that residential and non-residential employees should be treated the same for purposes of these deductions from hours worked, because “courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language.” Further quoting from the Wage Order, the court also added that “Employees who are ‘on call’ are considered to be working during all hours that they are confined to the workplace including those hours in which they do not actually perform their duties.”
This reasoning is especially significant because it is broader than the U.S. Department of Labor’s (“DOL”) Final Rule on the Application of the Fair Labor Standards Act to Domestic Service, recently validated by the D.C. Court of Appeals, but not yet effective and in force. Although the Final Rule recognized the difference between 24-hour shift workers who live in a client’s home (which it terms “live-ins”) and 24-hour shift workers who do not, it did not limit the deduction of sleep time or duty free time to live-ins alone. If the Manhattan and Brooklyn Supreme Court justices’ interpretation of New York law stands, it will supersede the federal rule on this issue.
The Bottom Line. Unless and until an appellate court in New York rules differently, home care agencies who employ “sleep-in” workers are exposed to potential current and past liability for 24-hour shift sleep-in cases when the worker is paid for fewer than 24 hours’ pay.
If you have any questions regarding this Alert or would like our advice regarding your home care agency’s particular facts and circumstances, please contact the author, Stephen Zweig, Partner in FordHarrison’s New York City office, who has counseled and defended home care agencies for over 35 years, at firstname.lastname@example.org or (212) 453-5900, or the FordHarrison attorney with whom you usually work.